THE INTEREST OF THE CHILD IN NON-BIOLOGICAL FILIATIONS IN THE SPANISH LAW

Abstract

In Spain, the 1981 legal system of filiation is based, with certain limits, on the principle of biological veracity: it tends to make a legal child who is biologically a child. Notwithstanding the above, the system opens the door to filiation without a biological basis when regulating adoption and assisted human reproduction techniques. On the other hand, the current doctrine of the Supreme Court on the validity of acknowledgements of consent also implies a departure from the principle of biological truth that finds legal backing in the recent Law 4/2023. The interest of the child is present, in the form of an inspiring principle, in the system of filiation based on the biological relationship. But when the system departs from biology, the criterion of the child's interest is affected: it ceases to have an homogeneous consideration and the intensity with which it is applied depends on the objective pursued with the different non-biological filiations, sometimes being overlooked. This places the child, in certain cases, in a situation of vulnerability. The paper analyses the specific treatment that the rules regulating each of these filiations (adoption, parentage derived from assisted human reproduction techniques and parentage determined by recognition of complacency) give to the interests of the child.